Summary
finding medical evidence alleging loss of range of motion in cervical and lumbar spine which failed to specify extent or degree of the limitation was insufficient to raise a triable issue of fact as to serious injury
Summary of this case from Hodder v. U.S.Opinion
May 18, 1998
Appeal from the Supreme Court, Kings County (Goldberg, J.).
Ordered that the order is affirmed, with one bill of costs, payable by the respondents appearing separately and filing separate briefs.
In support of their respective motions for summary judgment, the defendants submitted the sworn reports of their examining physicians which indicated that the infant plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). Accordingly, the defendants established, prima facie, that the infant plaintiff's injuries were not serious ( see, Licari v. Elliott, 57 N.Y.2d 230). The only recent medical evidence submitted by the plaintiffs in opposition to the motions for summary judgment alleged that the cervical and lumbar spines of the infant plaintiff sustained limitations of motion, but failed to specify the extent or degree of the limitation. Thus, the plaintiffs' evidence was insufficient to raise a triable issue of fact as to whether the infant plaintiff had sustained either a permanent loss or a significant limitation of use of a body function or system ( see, Wilkins v. Cameron, 214 A.D.2d 557; Stallone v. County of Suffolk, 209 A.D.2d 403; Lichtman-Williams v. Desmond, 202 A.D.2d 646). The mere use of the word "permanent" in the plaintiffs supporting medical affidavits, which were tailored to meet the statutory requirement, is insufficient to establish the existence of a serious injury as defined in the statute ( see, Gaddy v. Eyler, 79 N.Y.2d 955; Lopez v. Senatore, 65 N.Y.2d 1017, 1019).
The plaintiffs' remaining contention is without merit ( see, Horan v. Mirando, 221 A.D.2d 506; Nunez v. Dabrowski, 185 A.D.2d 269).
Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.